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Noh Entry: Halvar’s experience and American Legalisms

It appears I can’t attend Blackhat this year. I was denied entry to the US for carrying trainings materials for the Blackhat trainings, and intending to hold these trainings as a private citizen instead of as a company.

A little background: For the last 7 years, I have attended / presented at the ‘Blackhat Briefings’, a security conference in the US. Prior to the conference itself, Blackhat conducts a trainings session, and for the past 6 years, I have given two days of trainings at these events. The largest part of the attendees of the trainings are US-Government related folks, mostly working on US National Security in some form. I have trained people from the DoD, DoE, DHS and most other agencies that come to mind.

Each time I came to the US, I told immigration that I was coming to the US to present at a conference and hold a trainings class. I was never stopped before…

Halvar has been coming to the US to train people for six years. So here’s my question: Has the law changed? Why did this happen? What’s happened may be that he didn’t use precisely the right words to get through the line, and now he’ll be spending (my guess) $10,000 on lawyers to be able to re-enter the US.

I’m increasingly concerned about this–the police can detain you in a variety of ways, offer implicit threats of arrest, and there are certain very specific legal formulas you can invoke. For example, I’ve been told that you must ‘demand’ and attorney, rather than saying “I’d like an attorney,” in order to preserve your rights. If a cop is asking you questions, you must ask “are you detaining me?” in order to get an honest answer. No one should be required to know these formulas–not me to preserve my rights through an encounter with the police, and not Halvar to preserve his ability to enter the US.

I have a friend who has a US denied stamp on his Canadian passport because he was driving a co-worker to the border so that person could enter the US for 2 minutes, turn around, and re-enter Canada (to get a new Visa). The driver said “Oh, I don’t really care if you let me into the US,” and boom, his passport was marked and he was entered into the refused-entry list.

Now Halvar has to choose: he can spend probably thousands of dollars to clear his passport, or he can stop entering the US. Way to preserve jobs for Americans!

The title is a reference to the ultra-stylized ‘Noh‘ Japanese plays, where actors rehearse their lines in a vacuum.

12 thoughts on “Noh Entry: Halvar’s experience and American Legalisms”

I don’t feel at all sympathetic. And your comparison between between dealing with local law enforcement and going through customs is not valid and sounds downright naive. Traveling between countries – especially for work – is always fraught with potential issues. A country can deny your right to enter for any reason – there is no “bill of rights” for crossing national boundaries. And I always thought that the US was too lenient in this regard. I always make it a point to have my papers in order when traveling abroad and answer honestly at the checkpoints. I always keep my passport with me at all times with all supporting papers. And its kept me out of jail and allowed me entry with no issues. I have seen Halver recent experience played out a number of times – but in countries like the United Kingdom and Amsterdam. I have had friends brought to jail because they weren’t carrying their passport after being stopped walking back to their hotel in Tokyo! Halver got caught in the bureaucracy and he should of known better.

Yoshi,
I’m sorry you think that just because you try to prepare for this sort of thing it’s ok. Halvar has been entering the US in the same way for years, and got a different bureaucrat this time. I don’t think that’s a good result. I think it’s bad for the country.

That assumes you have a right to freely cross national boundaries. There is no such right. Countries have complex, stupid, and complete arbitrary rules for entering their states. What I find shocking is how ‘shocked’ people are in discovering these rules. What I also find interesting is that people are bashing the US for these same rules that have been enforced with much more consistency by other countries. Yes its bad for the country – whether it be the US, France, Germany, Australia, or whatever….

Yoshi, you’re right that countries are at liberty to apply “complex, stupid, and complete arbitrary” rules but one of the fundamental tenants of the rule of law is that any rules should be applied consistently. It’s naive to suggest that all travellers should be fully knowledgeable of all aspects of immigration law; that’s an expertise for which people pay hundreds of dollars an hour. When rules are not well publicised nor obvious nor consistently applied, and when historically one has passed through a system without hitch on a number of occasions, I think it’s perfectly reasonable to be shocked when one is told that what one is doing is wrong.
You are of course also right that the US is not the only country that behaves this way towards visitors. That said, just because many countries operate xenophobic, isolationist and exclusory immigration policies does not mean that such attitudes are any more reasonable. Indeed, if we find such policies repugnant when exercised by other countries it is all the more reason to call one’s own country to task when it does the same.

I’m with Yoshi on this one. This is the state of the world, and those who travel on “high lubrication” passports only to extremely friendly places that desire their tourist dollars have no idea what the real situation is. This naivete pertains because “it doesn’t apply / won’t happen to them …” hence the “shock” when the obvious is presented. The real situation is obviously and painfully written up in newspapers all the time.
Every country in the world that I know of (and I know about 8 intimately enough to make this judgment) has a totally zenophobic, totally isolationist, totally exclusionary immigration policy and system. In the broad .. the only difference between countries is whether they are efficient in processing this policy, and whether it applies to you. E.g., the most efficient in the world are those run in an island state.
To talk about the rule of law in an immigration context is just naive. Foreigners at borders don’t have rights, they are “between countries”. They may be able to aquire rights when they get back to a country … but that’s a matter of money not rights.

Ian, perhaps I may be being quixotic, but I think you’re being unduly cynical. Basing one’s world view on the exceptional cases that manage to get written up in the newspapers is just as naive as expecting all border guards to be friendly and helpful.
In practice if one experiences a recurrent pattern, a pattern which is also experienced by most if not all the other people one comes across, and then suddenly without warning one is faced with a break to that pattern which has unpleasant consequences, then I think one has every right to be shocked.
The vast majority of travellers, when handling borders, base their decisions on past experience and received wisdom rather than on intimate knowledge of immigration law. The shock in this case stems not from the general attitude of the INS for most people but from the exceptional behaviour in this case. The fact is that, for all their failings, the INS do not have a reputation for capricious decision making. Booting Halvar out of the country on a technicality is of course perfectly within their rights but that doesn’t make it a good decision in any way. As Adam said, this sort of behaviour is bad for the country (at many levels), and I’d say just the same thing if it were a different country.

There are an awful lot of rules, too, and those of us who rarely travel tend to be more ignorant than we should be. It wasn’t until recently that I learned I’m supposed to bring receipts for everything that I take with me that was made outside the U.S., otherwise I’m at risk of being charged duty on them when I return. How many of you still have the receipt for your wristwatch? Your digital camera?

Whether it is bad: Yes it is. For everyone. Funnily enough, trade barriers is the leading known myth in economics, it is the one barrier that all agree is damaging for all parties. Empirical data supports the theory, yet for centuries, the people choose to raise barriers at every border. (Why the myth of trade barriers has perpetuated for centuries is know a well known and accepted research topic.)
Booting him out on a technicality: that is how it always happens. There is no more to the story, there is always some technicality where the immigration official senses something he or she dislikes, and finds the very next convenient technicality in order to deal with the gut reaction. In Havar’s case, it was a fairly clear visa violation, making it an easy technicality to spot. As has been pointed out on his blog 🙂
Basing ones world view on the exceptional cases written up in the newspapers: How do you know they are exceptional? Answer: you don’t, but it’s a sufficient mental excuse to downgrade the information you have. In practice, the average white US/EU passport holder is not aware of any ‘events of technicalities’, and the newspapers do not disturb the bliss of ignorance.
To clarify the earlier comment about newspapers: consider how many Mexicans are in the southern states of the US on an informal basis, and how many are reported as being shipped back every day. This stuff is in the newspapers, we are not talking exceptional cases here, we are talking about a large, statistically measurable flow of mass migration.
How many are exceptional? Every single one of them, if they had enough money to present their case to a state-side judge. If not, they are just statistics that are ignored, but the benefits of immigration are so high to all the people, that the Mexicans will turn around and try again, some other way.
(Say, thank you!)

I have been denied entry in the US for reasons similar to Halvar: I was working as a contractor in Montreal for a company in San Jose and could not demonstrate to the border agent’s satisfaction that I was not effectively working directly for the company in San Jose. If I’d had business cards from my own company (something I never bothered to get) I would’ve gone through in a flash.
I tried explaining to the INS agent at the airport but any attempts at reasonning got me this answer: “Are you changing your story? If you lied to me I will bar you from entry for five years.” On the way home I checked with the state department and an INS border agent is (or was, this was 2003) indeed at discretion to bar a foreign national from entry for five years with practically no appeal recourses.
I was lucky that as a canadian national I wasn’t traveling on a passport so my passport hasn’t been flagged and I can still enter the US freely with it without undue searches or hold ups.